Citation Nr: 1805347	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  17-54 739	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Lynch, Associate Counsel



INTRODUCTION

The Veteran served from March 1959 to April 1963.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

The Veteran is seeking an increased initial rating for his service-connected hearing loss disability.  The Veteran contends that his hearing was actually worse when he was initially assigned a 10 percent rating in the May 2016 rating decision and that his hearing has gotten worse since that decision.  In support of his claim, the Veteran alleges that he cannot hear conversations in crowds and that he has to increase the volume on the television.  See October 2017 form 9; January 2018 appellate brief.

In September 2016, the Veteran also submitted a private audiological examination in support of his claim.  However, this claim is not valid for rating purposes because it does not notate whether a state-licensed audiologist conducted the test, nor does it include the required controlled speech discrimination test (Maryland CNC).  See 38 C.F.R. § 4.85(a).  

Furthermore, a VA examination in September 2017 produced results that were found to be unreliable by the examiner.  While a second September 2017 VA examination included Maryland CNC test results, it did not include the required puretone threshold results at 1000 Hertz (Hz) and 2000 for the right ear, and 1000, 2000, and 3000 Hz for the left ear.  38 C.F.R. § 4.85(b).  Rather, the examiner stated that she could not test at those frequencies, noting that the thresholds at these frequencies were considered to be suprathresholds and that the results "may be slightly better" than what was volunteered.  

However, in the absence of complete objective test results, the Board cannot determine the severity of the Veteran's current hearing loss for ratings purposes.  For this reason, the September 2017 VA examination is incomplete and, thus, inadequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

Given these discrepancies, the Board finds that further VA examination is necessary.  The Veteran is cautioned, however, that he has a duty to cooperate in the development of his claim, and this extends to cooperation during a VA examination.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Schedule the Veteran for a VA audiology examination to determine the current severity of his bilateral hearing loss disability.  Audiometric testing and speech discrimination testing should be performed, including the Maryland CNC test.  The examiner is requested to review all pertinent records associated with the claims file and to comment on the disparity in the results from the three previous hearing exams.  If test results are considered invalid or an inaccurate depiction of the severity of the Veteran's hearing loss, include an explanation regarding why valid and reliable audiometric data could not be obtained.

2. Thereafter, the RO should readjudicate the issue on appeal.  If the benefits sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC) and provided an appropriate period of time for response.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




_________________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2017).